KAUGER, J.
"I 1 The Bar Association alleged that Jennifer Layton (respondent): 1) neglected to disclose to the court and opposing counsel that her witness was going to testify inconsistently with his previous police statement; and 2) falsely denied that she had spoken to the [1246]*1246witness before and/or during the trial. It contends that her conduct violated Rules 3.8 [falsifying evidence/foiling to disclose evidence to tribunal],2 3.8[special responsibilities of a prosecutor],3 and 8.4 4 [professional misconduct] of the Rules of Professional Conduct, 5 0.8,2011 Ch.1, App. 3-A, and Rule 1.8 [discredit to the profession]5 of the Rules Governing Disciplinary Proceedings 5 O.S. 2011 Ch. 1, App. I-A. The Bar Association seeks "some length" of suspension. The respondent argues that she should not be disciplined given the circumstances surrounding the alleged events, the miscommunication/misunderstanding with the trial judge, and her lack of intent or any ulterior motives in making an inadvertent mistake.
12 We determine that the cumulative circumstances show that trial court's failure to create a transeribed record of bench conferences and chamber conferences in this serious first degree rape trial, coupled with the complaining defense attorney's in-court behavior, and the contemporaneous testimony of the respondent, reflect the nature of the proceedings. Under the facts presented, the respondent's violation of the rules does not [1247]*1247require the imposition of discipline. The bar disciplinary proceeding is dismissed, the respondent is exonerated of the charges, and the application to assess costs is denied.
FACTS
{3 The Bar Association's grievance against the respondent stems from a felony criminal rape trial held May 28-24, 2012, in Kay County district court. The respondent served as the prosecutor. Three different lawyers represented the three men who were on trial in consolidated cases for conspiracy, first degree rape, first degree rape by instrumentation, forcible sodomy and kidnaping.
T4 Antral Miller was a witness for the prosecution. In a police report which was provided to defense counsel,6 Miller stated that at approximately 4 or 5 a.m. on the morning of the alleged rape, the victim came to his house, let herself in through the unlocked back door, and awakened him. She was crying and she told him that she had been raped at a nearby house. Milter stated that "she did not tell me who raped her. She did not tell me who had done it." Miller was friends with the defendants and also happened to be a cousin of one of the defendants. The victim had always maintained that she knew that the three defendants had raped her and that she told this to Miller. Identity of the defendants was not an issue in the case, nor a surprise. Respondent had stated to the defense that Miller would testify consistent with reports previously provided to them.
1 5 Neither the respondent nor any of the defense counsel had an opportunity to discuss the case with Miller before the first day of trial Miller actively avoided subpoenas and was not a cooperating witness on anyone's behalf Even though the State unsuccessfully attempted to contact Miller on several occasions, he was only served in time to show up on the morning of the first day of trial The respondent saw Miller in the witness room where he told her that he did not want to be there and that he needed to leave because of his job. She informed him that he would not be needed that day, but that he had better show up the next day because he was still under subpoena.
16 The next day, Miller again reluctantly appeared at the trial to testify. Layton talked to Miller for about 90 seconds before she went into the courtroom while he was on the phone with his boss explaining his absence from work. Later that day, during a lunch break, Layton spoke with Miller for about 30 seconds, asking him about other people who were at the party. In one of these conversations, Layton admits that when she was walking away she heard Miller mumble something like "I can't believe Cuz, Kat and Soul raped her," but she did not think anything about it because the identity of the alleged attackers was not an issue in the case. The respondent did not disclose to any defense counsel that she had talked to Miller at all before he testified.7 When Miller did take the stand, after the lunch break, he testified that the victim told him "they raped me. Your cousin, Kerry and Kat raped me." Miller firmer explained that these were the nicknames of the defendants.
17 Miller's statements came as a surprise to defense counsel because they were inconsistent with his prior police report wherein he stated that the victim did not tell him the names of her alleged attackers. Accordingly, all three defense counsel objected on the [1248]*1248grounds that Miller's testimony had not been disclosed to them prior to trial.8 They, along with the judge, and the respondent, discussed the matter at the bench.
T8 Even though this was a serious felony criminal trial, the trial judge, apparently continuing his usual practice, chose not to include bench conferences on the official record.9 Consequently, there is no transcript of the conversation which occurred between the judge and lawyers. Later in the day, after the jury was excused, the trial judge went on the record and restated what happened during the conversation at the bench. He stated that the statement at the bench was made "to be fair to the State, was that the State had not met with this witness prior to trial" and that the "State did not anticipate that he would testify in the manner he testified today."
T9 The trial judge also found no lack of compliance of discovery on the State's part. According to the defense counsel, when the judge asked Layton if she had "spoken" to Miller before trial, she said that she had not "spoken" to him about his testimony prior to trial Consequently, the judge overruled the defense counsel's objections. The trial judge did allow the lawyers to add their own comments of "their own recollection of the bench conferences" if he were incorrect.
10 Layton continued direct examination of Miller, asking Miller to describe what happened on the night of the rape. She also asked if a man nicknamed "June Bug" had anything in his hand. Miller responded that June Bug was very intoxicated and was carrying a bottle of tequila. This line of questioning drew another objection which was overruled because Layton again denied speaking with Miller prior to trial.
11 On cross examination, Miller testified that he had not talked with anyone in the District Attorney's office about his testimony and that he "just came yesterday for court, and today." Layton did not correct this inaccurate technicality, nor did she do so at the end of the day's court proceedings when the judge was summarizing the objections for the record. Rather, she allowed the court to believe that she had never discussed anything with Miller at all, when in fact she had "spoken" to him very briefly while she prepared to start the trial and during the chaos which was occurring with the arrival of the victim, witnesses, and the victim's family members.
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KAUGER, J.
"I 1 The Bar Association alleged that Jennifer Layton (respondent): 1) neglected to disclose to the court and opposing counsel that her witness was going to testify inconsistently with his previous police statement; and 2) falsely denied that she had spoken to the [1246]*1246witness before and/or during the trial. It contends that her conduct violated Rules 3.8 [falsifying evidence/foiling to disclose evidence to tribunal],2 3.8[special responsibilities of a prosecutor],3 and 8.4 4 [professional misconduct] of the Rules of Professional Conduct, 5 0.8,2011 Ch.1, App. 3-A, and Rule 1.8 [discredit to the profession]5 of the Rules Governing Disciplinary Proceedings 5 O.S. 2011 Ch. 1, App. I-A. The Bar Association seeks "some length" of suspension. The respondent argues that she should not be disciplined given the circumstances surrounding the alleged events, the miscommunication/misunderstanding with the trial judge, and her lack of intent or any ulterior motives in making an inadvertent mistake.
12 We determine that the cumulative circumstances show that trial court's failure to create a transeribed record of bench conferences and chamber conferences in this serious first degree rape trial, coupled with the complaining defense attorney's in-court behavior, and the contemporaneous testimony of the respondent, reflect the nature of the proceedings. Under the facts presented, the respondent's violation of the rules does not [1247]*1247require the imposition of discipline. The bar disciplinary proceeding is dismissed, the respondent is exonerated of the charges, and the application to assess costs is denied.
FACTS
{3 The Bar Association's grievance against the respondent stems from a felony criminal rape trial held May 28-24, 2012, in Kay County district court. The respondent served as the prosecutor. Three different lawyers represented the three men who were on trial in consolidated cases for conspiracy, first degree rape, first degree rape by instrumentation, forcible sodomy and kidnaping.
T4 Antral Miller was a witness for the prosecution. In a police report which was provided to defense counsel,6 Miller stated that at approximately 4 or 5 a.m. on the morning of the alleged rape, the victim came to his house, let herself in through the unlocked back door, and awakened him. She was crying and she told him that she had been raped at a nearby house. Milter stated that "she did not tell me who raped her. She did not tell me who had done it." Miller was friends with the defendants and also happened to be a cousin of one of the defendants. The victim had always maintained that she knew that the three defendants had raped her and that she told this to Miller. Identity of the defendants was not an issue in the case, nor a surprise. Respondent had stated to the defense that Miller would testify consistent with reports previously provided to them.
1 5 Neither the respondent nor any of the defense counsel had an opportunity to discuss the case with Miller before the first day of trial Miller actively avoided subpoenas and was not a cooperating witness on anyone's behalf Even though the State unsuccessfully attempted to contact Miller on several occasions, he was only served in time to show up on the morning of the first day of trial The respondent saw Miller in the witness room where he told her that he did not want to be there and that he needed to leave because of his job. She informed him that he would not be needed that day, but that he had better show up the next day because he was still under subpoena.
16 The next day, Miller again reluctantly appeared at the trial to testify. Layton talked to Miller for about 90 seconds before she went into the courtroom while he was on the phone with his boss explaining his absence from work. Later that day, during a lunch break, Layton spoke with Miller for about 30 seconds, asking him about other people who were at the party. In one of these conversations, Layton admits that when she was walking away she heard Miller mumble something like "I can't believe Cuz, Kat and Soul raped her," but she did not think anything about it because the identity of the alleged attackers was not an issue in the case. The respondent did not disclose to any defense counsel that she had talked to Miller at all before he testified.7 When Miller did take the stand, after the lunch break, he testified that the victim told him "they raped me. Your cousin, Kerry and Kat raped me." Miller firmer explained that these were the nicknames of the defendants.
17 Miller's statements came as a surprise to defense counsel because they were inconsistent with his prior police report wherein he stated that the victim did not tell him the names of her alleged attackers. Accordingly, all three defense counsel objected on the [1248]*1248grounds that Miller's testimony had not been disclosed to them prior to trial.8 They, along with the judge, and the respondent, discussed the matter at the bench.
T8 Even though this was a serious felony criminal trial, the trial judge, apparently continuing his usual practice, chose not to include bench conferences on the official record.9 Consequently, there is no transcript of the conversation which occurred between the judge and lawyers. Later in the day, after the jury was excused, the trial judge went on the record and restated what happened during the conversation at the bench. He stated that the statement at the bench was made "to be fair to the State, was that the State had not met with this witness prior to trial" and that the "State did not anticipate that he would testify in the manner he testified today."
T9 The trial judge also found no lack of compliance of discovery on the State's part. According to the defense counsel, when the judge asked Layton if she had "spoken" to Miller before trial, she said that she had not "spoken" to him about his testimony prior to trial Consequently, the judge overruled the defense counsel's objections. The trial judge did allow the lawyers to add their own comments of "their own recollection of the bench conferences" if he were incorrect.
10 Layton continued direct examination of Miller, asking Miller to describe what happened on the night of the rape. She also asked if a man nicknamed "June Bug" had anything in his hand. Miller responded that June Bug was very intoxicated and was carrying a bottle of tequila. This line of questioning drew another objection which was overruled because Layton again denied speaking with Miller prior to trial.
11 On cross examination, Miller testified that he had not talked with anyone in the District Attorney's office about his testimony and that he "just came yesterday for court, and today." Layton did not correct this inaccurate technicality, nor did she do so at the end of the day's court proceedings when the judge was summarizing the objections for the record. Rather, she allowed the court to believe that she had never discussed anything with Miller at all, when in fact she had "spoken" to him very briefly while she prepared to start the trial and during the chaos which was occurring with the arrival of the victim, witnesses, and the victim's family members.
{12 One of the defense counsel expressed concern that Layton could not have possibly known to ask Miller about what someone had in their hand unless she had spoken with him prior to his testimony. The judge instructed all counsel to convene in his chambers first thing the next morning. What happened in the judge's chambers was again not recorded or transcribed, leaving this Court with little to review. By everyone's account it was tense, confrontational, but, and emotional. Apparently the judge yelled at Layton, asking if she had "spoken" to Miller prior to trial? Her testimony was that rather than let her explain or expand on what she said, he merely kept accusing her of lying to him in court and demanded she "fell on her sword."
1 13 What is not clear, is what was actually said in this conference because there were slight variations in each person's descriptions of what occurred in chambers. Of course, the Judge and lawyers were having to recall what had happened during a trial that had occurred over 18 months earlier. The defense counsel now seemed to "understand" that Layton admitted that she did in fact know Miller was going to testify that the victim had identified the three defendants. Layton insists that she never knew that he was going to change his testimony.
T14 She also insists that she misunderstood the trial judge when he asked her if [1249]*1249she had "spoken" to Miller. She interpreted this to mean, had she spoken to him "about his testimony," or have any kind of meaningful witness preparation with him-neither of which occurred. She maintains she never knew Miller was going to change his testimony. Layton said that the judge just yelled at her and would not allow her to explain anything, but instead called her a Bar and kept insisting she "fell on her sword." What is apparent was that the trial judge's primary concern was that she call herself a "liar" to him. Apparently, the trial court and the respondent were never on the same wave length.
{15 Regardless of whether Layton knew what Miller was going to say on the stand, the trial court was convinced that she had lied about having ever "spoken" to him at trial at all and that she did not point out that Miller was lying when he said he hadn't spoken to the District Attorney's office before trial His effort to "fix" the matter was to instruct the jury that Miller had given false testimony when he stated that he did not speak with anyone from the District Attorney's office and that the jury could consider that tact in their deliberations. The instruction offered no further information as to exactly what the communication was or when it occurred.
[ 16 During the trial, defense attorney Lof-tis demanded that the matter be referred to the Oklahoma Bar Association based on the respondent's failure to give the defense counsel notice as to Miller's change in testimony. Layton's response is long, but necessary because it was transcribed on the record, during the trial It literally sets the stage for how the events unfolded that day. The transeript of the proceedings of May 24, 2012, pp. 16-22 provides:
MS. LAYTON: First of all, so much about what happened yesterday has been misconstrued. What happened is-first of all, I want to at least paint somewhat of a picture of what is going on in my world during these trials, compared to what is happening here.
The Victim Witness Center is jam-packed with people at all times. Antral Miller has not been available to the State because he is the cousin of one of the defendants and the good friend of the other defendant. He has been completely available to the defendants for a year and-a-half We have not been able to interview him, law enforcement has not, nor has any employee of the District Attorney's Office, despite numerous phone calls and attempts to talk to him for a year and-a-half, because he is related to the defendants and good friends of theirs.
THE COURT: Let me stop you a minute.
MS. LAYTON: Please don't, Your Honor. Please let me finish.
THE COURT: No, because you made a statement I want to follow up on. Has any law enforcement official or employee of the District Attorney's Office contacted Mr. Miller and he refused to talk to them?
MS. LAYTON: No. We have attempted to contact him, left messages on cell phones, talked to people around him and told him we wanted to talk to him, and he has not returned calls and would not speak to anybody. People have gone to his home to attempt to serve him subpoenas and he is never there. We cannot contact him. 'The only way we finally did serve him is there was a fire and a fireman, who is also a reserve deputy, kept him there, made a phone call and got him served and he was not happy. But he was told at that time if he did not honor that subpoena, he could be arrested. That is the only reason he showed up, and his uncle brought him to make sure he didn't get arrested. So he did appear under subpoena Tuesday morning.
At the same time when I'm trying to prepare a victim to testify on the most horrible day of her life, I've got her family in there, who are not easy to deal with, quite frankly. I've got Mr. Loftis's assistant calling her a slut all the way through the courthouse. I'm trying to deal with that and deputies talking to me about that. [1250]*1250And meanwhile, Mr. Goodman tells me he needs my officer for a prelim at the same time. I've got other people in there, I don't even know who they are. All of this is happening at the same time.
Meanwhile, Antral Miller walks in. I'm actually shocked he shows up, but he does. I have approximately two minutes to spend with him before he testifies later in the day. I tell them:; Do not let this man leave; I'm going to need him later in the day.
He's on the phone when I even see him.
I get to spend a couple of minutes with him while he is literally on the phone with his employer. At the same time, he's complaining: I'm supposed to be at work. I don't want to testify. I told you I don't want to testify. I don't want to be here. I'm going to be a snitch. They're going to hurt me. I don't want to testify.
And I'm trying to deal with him like a mother: You have to testify, you've got to tell the truth, you-you said you'd tell the truth, that's what you're-you know, I'm dealing with this.
So he's on the phone with his employer and I say to him: You gave a statement to the police. Are you going to testify truthfully to what you told the police? And he says: Yes.
I'm literally trying to get out the door as Ed Goodman is knocking on the door telling me he needs my case officer, and I turn to him and say-because I remember that the Defense keeps harping on this Lee Coburn that's going to testify that he sees consensual sex-so I say to him: Is Lee-do you remember seeing Lee Co-burn at this party-cause I don't think there's any reason why I can't ask my witnesses for a few extra details when they testify, just like everybody else does-and I say: Did you see Lee Coburn at this party? And he's, like: Yeah, he's drunk and unconscious the whole time, cause he's been carrying around a fifth of something.
I don't know much about liquor, I don't know what he said.
So I'm, like, oh, well that's kind of interesting. If he's drunk, unconscious the whole time, how is he seeing everything they're saying he is seeing?
Interestingly enough, Your Honor, that's not what he testified an hour later on the stand. So had I provided an updated witness exhibit list that had his summary of testimony, it wouldn't have even been accurate. That's one of the things that makes this so difficult with this seript that they're expecting me to provide. Had I provided that, that wouldn't have been accurate, anyway, because he didn't testify the same an hour later about Lee Coburn when I asked him about how much he'd had to drink and being unconscious, lying around through the whole party. He didn't say that. What his testimony was, was more helpful to them about Lee Co-burn.
Then, I said: And you're going to testi{y-
THE REPORTER:; You need to slow down Ms. Layton. I'm sorry.
MS. LAYTON: Then as-again, he's on the phone, literally, with his employer and barely talking to me and I'm standing there, spending about two minutes with him. I say to him; And you're going to testify honestly that Alicia Southern came to you erying for help, and I understand you couldn't help her-I'm trying not to make him feel guilty or bad-but she came and told you this happened to her?
And he says, kind of shaking his head: I can't believe Cuz, Kat and Soul did that to her, but I-I'm going to tell the truth.
And that's when he mumbled that statement. And at that time, Your Honor, it never occurred to me he had never said that before. I have read preliminary hearing transcripts, I've listened to seven disks full of interviews in the last week. I have read statements after statements. I don't have every single one memorized word-for-word. It never occurred to me at that moment that I needed to run, retype an exhibit/witness list for these Defense attor[1251]*1251neys. I left at that moment, thinking, thank God he's going to testify. That never occurred to me.
Then he's testifying, boom the objection occurs, we come up to the bench for the hundredth time in this trial and they're-they're yelling they don't know that information You asked me-and they bring up my witness list and say: This isn't in the witness list, it says consistent with the reports.
And I say: I never got to interview this witness. We couldn't find him We couldn't subpoena him till the last minute. And I say: I never got to interview this witness. We couldn't find him We couldn't subpoena him till the last minute.
I think I even mentioned the fire. Ms. Ramsey even has the list in her band.
And you say: Did you know he was going to testify to that? Could you have given notice?
And I said: Your Honor, I never saw that man until today, until he was subpoenaed to come here to testify. I didn't know he was going to say that.
I would-we were talking about notice. I never intended to lie to the Court. I literally knew that in a split second as I'm walking out the door. I remember hearing him mumble: Cat whatever those nicknames are. I've heard so many nicknames in this case and street names and all that. I did remember him mumbling that. So when we went back in chambers and you asked me: Did you know that? It clicked that, yes, I did know that a few minutes or hours, whatever, before he testified. So I wasn't going to stand in your-in your chambers and say: No, I had never heard that information before.
I answered those questions. If I had created this to some great conspiracy to lie, I could have simply stood in your chambers and said: No, never heard that, Your Honor, I just thought about the bottle because of liquor. I could have continued that. I never intended to mislead or lie. When we were at the bench, we were talking about notice issues.
17 The jury acquitted the defendants of all the charges. Two months later, one of the three defense attorneys, Seott Loftis, filed a bar complaint alleging that Layton violated the Rules of Professional Conduct by lying to the court. The other two defense attorneys would not join in filing the complaint, but they did provide their affidavits concerning their versions of what occurred at the trial Loftis prepared an affidavit for one of them to sign, but he felt two paragraphs of it were opinion-based that Loftis wanted him to say he believed Layton had committed some violation, but he was unwilling to do that.
118 After investigating the matter, the Bar Association filed a complaint with this Court on May 28, 2013, alleging that the respondent engaged in one count of misconduct in violation of Rules 3.3, 8.8, and 8.4 of the Rules of Professional Conduct and Rule 1.3 of the Rules Governing Disciplinary Proceedings 10 when she foiled to advise the trial court and the defense counsel that she had briefly talked to the witness while he was at the courthouse for the trial Layton answered, denying any wrongdoing. She explained in a letter to the Bar Association:
When [the judge] Boyd asked me that question, at 4:15 p.m. on the second day of trial, I thought he was asking me if I had talked to the witness about his testimony and knew he was going to testify differently than what he had told Detective Sher-ron. When I told him no, I believed 100% that I was giving him an honest answer. I never intended to lie to the court or anyone else. I think it is also important to note that the witness testified under oath to the exact same thing when the defense [1252]*1252attorneys asked him the same question when he was testifying. Neither one of us felt like our brief encounters that day constituted 'speaking with the district attorney's office about your testimony.'
{19 The PRT held a hearing on August 22 and September 17, 2018. Several additional facts were revealed at the hearing which were not reflected in the partial jury trial transcripts which were submitted with the record. In addition to the above facts, the hearing testimony also revealed the personal bias of Loftis against both Layton and her employer. The respondent and Loftis agree that they never got along or liked each other. Lofits called the respondent either a "-ing idiot" or "f-ing bitch" [two different accounts were given by witnesses, both agreed he used the word "f-ing"] in open court and in the presence of print media journalists without any apparent rebuke from any of the other attorneys or the trial court. In fact, he blatantly turned to the press and told them they could quote him No one seemed concerned that Loftis may have violated the Rules of Professional Conduct by this in court outburst or by letting his staff harass the victim by calling her a slut.11 However, this oversight may resolve itself because the disciplinary proceeding hearing ended on September 17, 2018, the PRT report was filed on November 12, 2013, and on November 21, 20183, Loftis was charged with multiple febnies in Kay County, including subordination of perjury, false preparation of exhibits as evidence, and conspiracy to bring contraband into a penal institute.12
[1253]*1253T 20 Loftis publicly opposed the election of the District Attorney, calling him a miserable failure to the citizens of Kay and Noble Counties. He also planned on seeking to replace the DA in 2014.13 The respondent, on the other hand, according to witnesses, prior to this case, had a reputation for honesty, candor, integrity and professionalism They testified her alleged actions in this trial were not consistent with her reputation or her work history as a practicing attorney. A judge who testified on her behalf said:
Based on my number of cases I've had with Ms. Layton, the professional relationship that I've had with her, other members of our Bar throughout, I cannot in my wildest imagination believe that she intentionally would mislead the Court.14
Another Judge said:
I would not imagine that what I know of Ms. Layton, that she would be the type of person who would deliberately mislead the Court or mislead counsel for the opposing party, either one.15
A third judge wrote in a letter to the Bar Association that:
I do not wish to interfere with the Bar Association's process in the investigation of the complaint I write only to lift Jennifer up as a valuable, ethical, and moral member of our focal bar.16
Nor were her actions planned, schemed or premeditated to subvert justice. Rather, they occurred in the spur of the moment, in the heat of a vigorously contested rape trial
T21 After serving eight years in the DA office, Layton left, and she is now in private practice. Apparently, the trial judge is still waiting for his apology.17 Layton also stated that the investigator for the Bar Association told her she needed to file a written reply and that she had better show remorse and tell the Bar Association that she had learned her lesson and phrase it as best she could or they would go harsher on her. The investigator denies this. Nevertheless, when the lawyer stood her ground, this cause was vigorously pursued to this Court.
122 On November 12, 2018, the PRT determined that the Bar Association neglected to prove by clear and convincing evidence any violation of 3.8 of the Rules of Profes-
+ [1254]*1254sional Conduct concerning the special responsibility of a prosecutor to disclose to the defense all mitigation information known to the prosecutor.18 It acknowledges, and we agree, that the clear and convincing evidence did not show that: 1) Layton knew Miller would testify as he did; and 2) that such testimony would exculpate, mitigate, or negate guilt and should have been disclosed. It did find that she violated Rules 3.3 and 8.4 of the Rules of Professional Conduct.19 In other words, the PRT agrees that Layton did not know Miller was going to change his testimony, but she lied to the trial judge when she denied speaking with him prior to trial It recommended that Layton be publicly censured and that she pay the costs of the investigation in this matter.
123 Regardless of the PRT's findings, the Bar Association argues that the clear and convincing evidence demonstrated that the respondent did violate Rules 3.3, 3.8, and 8.4 of the Rules of Professional Conduct and Rule 1.8 of the Rules Governing Disciplinary Proceedings.20 It seeks some type of suspension rather than a public censure. On November 12, 2013, the Bar Association filed an application to assess costs against the respondent for the amount of $6,438.71. On February 11, 2014, the Bar Association amended its application for costs to exclude reimbursement of lunch expenditures. The amended amount is $6,273.71.
124 THE CUMULATIVE CIRCUMSTANCES SHOW THAT THE TRIAL COURTS NEGLECT IN CREATING A TRANSCRIBED RECORD OF BENCH CONFERENCES AND CHAMBER CONFERENCES IN THIS SERIOUS FIRST DEGREE RAPE TRIAL, COUPLED WITH THE COMPLAINING DEFENSE ATTORNEYS IN COURT BEHAVIOR, AND THE CONTEMPORANEOUS TESTIMONY OF THE RESPONDENT, REFLECT THE NATURE OF THE PROCEEDINGS. UNDER THE FACTS PRESENTED, THE RESPONDENTS VIOLATION OF THE RULES DOES NOT REQUIRE THE IMPOSITION OF DISCIPLINE.
125 In disciplinary matters, this Court possesses exclusive original jurisdiction.21 We are not bound by agreed findings, conclusions of law, or recommendations for discipline.22 Rather, the ultimate responsibility for imposition of professional discipline is ours alone. The Court's review is de novo in considering the record presented as well as the recommendations for discipline.23 Before we may impose discipline upon an attorney, the charges must be established by clear and convincing evidence.24
{26 Undeniably, Rules 3.3, and 8.4 of the [1255]*1255Rules of Professional Conduct25 require candor and honesty to the trial court and violating such rules would certainly bring discredit to the profession.26 The record is clear that Layton was not clearly candid to the trial court that she spoke with Miller before his testimony, or what was discussed. To illustrate the violation of the Rules, and to respond to the respondent's argument that she did not intend to deceive the judge, the Bar Association relies on State ex rel. Okla. Bar Ass'n v. Krug, 2004 OK 28, ¶12, 92 P.3d 67 and State ex rel. Oklahoma Bar Ass'n v. Johnston, 1993 OK 91, 868 P.2d 1136.
27 In Johnston, supra, an attorney was accused of commingling and converting funds and making false statements to the court. The record did not show that the attorney had any improper motive. The Court noted that a violation of the Rules does not require any proof of "bad or evil intent." In Krug, supra, the attorney was alleged to have made a false statement to a tribunal by attaching an order of a fee request which did not conform to the judge's actual order. It was shown that she did not realize the copy was non-conforming until the judge pointed it out to her. The PRT relied on Johnston, supra, to find that a violation of the rules occurred regardless of whether the attorney intended to deceive the judge. We said in Krug, supra:
{11 Johnston does not go as far as the PRT suggests. Although Johnston does say a 'false statement to a tribunal ... requires no proof of bad or evil intent, nor must it be material, id. at 1148, it does not do away with ORPC Rule 3.3(a)'s requirement that the alleged act be done knowingly. In fact, the case cited by Johnston makes this clear. The cited case, OBA v. McMillian, 1989 OK 16, 770 P.2d 892, expressly reaffirms the requirement that the alleged act be done knowingly: 'As long as the lawyer has actual knowledge of a false statement of fact or law, no inquiry need be made as to his [or her] motivation for making the false statement to show a rule violation McMillian, 770 P.2d at 899 (emphasis added).
112 For purposes of ORPC Rule 8.3(a), knowingly means 'actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances! 5 0.98.2001, Ch. 1, App. 3-A (Terminology). Thus, to prevail on Count I of its Complaint in this matter, the OBA must prove more than the fact that Respondent physically 'attached' (Me., stapled) a copy of the non-conformed order to her fee application. Rather, the OBA must prove Respondent had actual knowledge she was making a false statement of fact to Judge Croy, Le., that the order she attached to her fee application was a non-conformed copy of the original.
1 13 Despite the PRT's conclusion that Respondent violated ORPC Rule 3.8(a), it acknowledged in its Report: 'It is not certain whether [Respondent's] use of the erroneous order in her fee application was intentional or an oversight' In other words, the panel itself questioned whether the Respondent's conduct was done with actual knowledge. Our de novo review of the evidence leads us to the same question.
128 While intent may be irrelevant, actual knowledge of the falsity is relevant. Here, if the respondent had misunderstood what the trial judge was asking, her "actual knowledge" was based on a mistake and Johnston, supra, and Krug, supra do not control The trial court did not have either the bench conference or in chamber conference [1256]*1256transcribed. Instead, relying on its notes and everyone's memory, we are asked to suspend a lawyer from her profession based upon what clearly appears to be a misunderstanding or at least does not a appear to be a clear and convincing violation of the rules. In hindsight, Layton should have expressly informed the court that she had "spoken" to Miller briefly, but that she did not conduct any meaningful discussions about his testimony or learn that his testimony would differ from the police report. Her conduct does not rise to a level requiring discipline. The conversation took place within the chaos of the Victim Witness Center. Her actions were taken in the heat of a very contentious and intense trial where she was being verbally attacked by a defense counsel in open court and his staff was disparaging to the alleged victim There is no evidence of active or intentional deceit, nor did the events result in any kind of unfair trial for the defendants, as they were acquitted of the charges. The language she used in explaining what happened was the truth based on actual knowledge of her perception of the trial court's questions.
1 29 Even if this conduct rises to the level of a rule violation, the question becomes what form of discipline is appropriate? The Bar Association relies on three comparison cases: State ex rel. Okla. Bar Ass'n v. Stubblefield, 1988 OK 141, 766 P.2d 979 (Attorney suspended for 30 days for misrepresentation in adoption and divorcee proceedings); State ex rel. Okla. Bar. Ass'n v. Johnston, 1998 OK 91, 863 P.2d 1186 (Attorney suspended for commingling and converting funds, making false statements to court, professional incompetence, failure to act promptly and communicate with clients); and State ex rel. Okla. Bar Ass'n v. Peveto, 1980 OK 182, 620 P.2d 392 (Attorney suspended for 1 year for neglecting clients' affairs and knowingly making false statements to clients).
$830 Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct.27 Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.28 Discipline should be sufficient to persuade the attorney that such conduct will not be tolerated.29 Mitigating cirenmstances may be considered in evaluating both the attorney's conduct and assessing the appropriate discipline.30
131 This Court is the sole arbiter of bar discipline.31 We are free to attribute as much weight to the trial panel's recommendations as we see fit.32 Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury. Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances,33 dismissals of client's cases, or foil[1257]*1257ing to do anything on a client's behalf34 or other types of client's case mismanagement.[1258]*125835 The Bar Association apparently would liken Layton's conduct to that of our [1259]*1259recent prosecutorial case of State ex rel. Okla. Bar Ass'n v. Miller, 2013 OK 49, 309 P.3d 108, wherein Miller was charged with 5 counts of misconduct during a murder trial and suspended for 180 days.
1 32 If we were to fashion discipline here to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct, even while considering the unique transgressions and mitigating factors in this cause, it appears that the case should be dismissed, much like that in State ex rel. Okla. Bar Ass'n v. Krug, 2004 OK 28, 112, 92 P.3d 67 and State ex rel. Okla. Bar Ass'n v. Roberts, SCBD 5468 (A disciplinary proceeding we dismissed wherein the lawyer was charged with the duty to inform a probate court of a "possible" existence of a will). Accordingly, the bar disciplinary proceeding is dismissed, the respondent is exonerated of the charges, and the application to assess costs is denied.
CONCLUSION
133 We do not reach this conclusion lightly. However, our responsibility is not to punish but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. Discipline is imposed to maintain these goals rather than as punishment for the lawyer's misconduct.36 Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts.37 It is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct.38
1 34 This entire proceeding does not reflect well on the administration of justice. No one is without fault:
1) the respondent misunderstood and failed to tell the truth with precision;
2) the judge presided over and allowed without sanctions, inappropriate conduct by Loftis. The admitted hostility between Lofits and the assistant district attorney and her employer tainted the sanctity of the courtroom. Failure to have a written record of the bench and in camera conferences exacerbated the problem. Tempers were permitted to flow where cold neutrality is the standard; and
3) the disciplinary proceeding by the Bar Association focused only on the allegations against the respondent and completely ignored the totality of the cirenmstances.
Were this an athletic contest, all of the players would have been ejected for unsportsmanlike conduct. The respondent explained her mistake. Based on the record and the lack thereof, the others are inexplicable.
135 Under the facts presented, the respondent's violation of the rules does not warrant discipline. Imposing discipline for such a violation would not serve any of the purpose of which discipline is administered. Consequently, the bar disciplinary proceeding should be dismissed and the respondent exonerated of the charges. The Bar Association's application to assess costs is denied.
[1260]*1260BAR DISCIPLINARY PROCEEDINGS DISMISSED; RESPONDENT EXONERATED; APPLICATION FOR COSTS DENIED.
COLBERT, C.J., REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ., concur.
WATT, J., dissents.